MITCHELL v. BERRYHILL

Filing 27

ORDER ADOPTING 26 REPORT AND RECOMMENDATION signed by William Terrell Hodges on 10/12/17. The decision of the Commissioner, denying benefits, is reversed. This case is remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further consideration of the VA disability rating and the combined effect of plaintiffs impairments. (tss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

ANTHONY JEROME MITCHELL,
PLAINTIFF,
-vs-

Case No. 1:16-cv-00018-WTH-CJK

NANCY A BERRYHILL, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
______________________________/
ORDER
This cause comes on for consideration upon the Magistrate Judge's Report and
Recommendation dated August 9, 2017. (ECF No. 26). The parties have been
furnished a copy of the Report and Recommendation and have been afforded an
opportunity to file objections pursuant to Title 28, United States Code, Section
636(b)(1). The time for filing objections has passed, and none have been filed.
Having considered the Report and Recommendation, I have determined that the
Report and Recommendation should be adopted. Thus, under sentence four of 42
U.S.C. § 405(g), the decision of the Commissioner denying benefits is reversed and the
matter remanded to the Commissioner for further consideration.
A remand under sentence four is considered a final judgment. Bergen v.
Commissioner, 454 F.3d 1273 (11th Cir. 2006). Thus, absent a court order stating
otherwise, a successful plaintiff’s counsel would normally have fourteen days after the

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order of remand to file a motion with the District Court requesting an award of attorney
fees. Fed. R. Civ. P. 54(d)(2)(B). This Rule has been interpreted by the Eleventh
Circuit to even apply to a request for fees to be paid from plaintiff’s past due benefits
pursuant to 42 U.S.C. § 406(b)(1). Bergen, 454 F.3d at 1277-78. However, plaintiff's
counsel in such a case will not know the amount of benefits - and therefore fees - until
after the Commissioner awards benefits, which typically takes longer than fourteen
days after the entry of judgment. Therefore, an extension of time to seek such fees is
warranted, and was recommended by the Bergen opinion. Id.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
The Report and Recommendation of the Magistrate Judge is adopted and
incorporated herein by reference. The Clerk is directed to enter final judgment stating
as follows:
The decision of the Commissioner, denying benefits, is reversed. This case is
remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g) for
further consideration of the VA disability rating and the combined effect of
plaintiff’s impairments.
Pursuant to Bergen, proceedings on attorney fees under the Social Security Act,
42 U.S.C. § 406(b), are stayed until the matter is fully adjudicated upon remand. The
plaintiff shall file a motion to award fees under § 406(b) within 30 days after counsel
receives notice from the Commissioner as to plaintiff’s past due benefits, if any are
awarded.

Case No: 1:16-cv-00018-WTH-CJK

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This stay relates only to attorney fee proceedings under § 406(b) of the Social
Security Act, not to attorney fee proceedings under the Equal Access to Justice Act, 28
U.S.C. § 2412, the latter of which may be adjudicated at this time.
The Clerk is directed to close the file.
DONE and ORDERED at Gainesville, Florida this 12th day of October, 2017.

Case No: 1:16-cv-00018-WTH-CJK